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There is still no definitive answer as to how art 8 of the ECHR will engage between private individuals in an action by a private landowner to recover possession from ab initio trespassers who have unlawfully set up home on his land. However, there has been a step forward in the Manchester Ship Canal case.

The claimants had been granted permission to drill on some land. The drilling was of an exploratory nature to see if the area was suitable for “fracking”. Opponents to the “fracking” process set up camp on the access road. The Claimant sought an order for possession.

The Defendant occupiers argued that their eviction would be a disproportionate interference with their rights under Articles 8, 10 and 11 of the ECHR.

HHJ Pelling decided that there was no reasonably arguable defence. As regards Arts 10 and 11 (the rights to freedom of expression/peaceful assembly), the Defendants’ occupation was without the permission of the landowners who were exercising their rights under article 1 of Protocol. There was no question of a possession order denying the Defendants the effective exercise of their Convention rights given that a protest could take place anywhere- not just on the access road. As for Article 8, the Defendants had not established a sufficient and continuous link with the land (Buckley v UK (1996) 23 EHRR 101) and/or there was nothing exceptional about the case to give them an arguable defence.

Not surprisingly, a possession order was made. So far so ordinary. However, the Judge went on to discuss the place of art. 8 arguments in ab initio trespasser cases where both parties were private individuals.

Ward LJ had previously attempted to grapple with these issues in Malik v Fassenfelt [2013] EWCA Civ 798,. However, all his remarks were obiter and the other two members so the Court of Appeal refused to express a decided view.

In Manchester Ship Canal HHJ Pelling reviewed the law and expressed his views at para.46:

“Any view I express on this issue is unlikely to be anything more than the platform for an appeal so I express my conclusions on this issue shortly. Firstly, it is difficult to see on what logically defensible basis it could be said that Articles 10 and 11 are engaged in relation to claims for possession by private landowners – as to which see the discussion above – without also concluding that Article 8 is also capable of being engaged in relation to such claims. Secondly, I do not see how it is open to the Court to opt out simply because the Claimant is a private landowner given the terms of s6 of the Human Rights Act 1998. There is nothing artificial in this – the private landowner is seeking to use a public authority (the court) in order to assist him to vindicate his ownership of his land. The court as the public authority concerned can only do so on terms that respect the convention rights of all relevant parties, which on this analysis would include the Article 8 rights of the trespasser and the A1P1 rights of the landowner. The landowner accepts this by seeking the assistance of the court. Thirdly, although extending Article 8 to claims by private landowners would be an extension I question whether it would be an unprincipled one given that anyone relying on Article 8 in this context would have to establish that the land concerned was a home applying the convention test applicable to that concept, and given that once that threshold has been passed the only obvious justification for treating a trespasser on land owned by a local authority any differently than a trespasser on privately owned land is that the Article 8 rights of the trespasser would have to be balanced against the A1P1 rights of the private landowner. If that is so, I do not see why that cannot be catered for by treating the fact that the land is owned privately as the primary factor in deciding whether ordering possession is proportionate much as is the effect of Appleby (ante) in relation to Article 10 and 11 cases concerning claims for possession by private landowners with the result that it will only be in exceptional cases that the A1P1 [article 1 protocol 1 of the ECHR] rights of a private landowner are treated as trumped by the Article 8 rights of a trespasser. For those short reasons I proceed on the basis that Article 8 is capable of being engaged even in relation to land owned by a private landowner. This was the approach favoured by both the first instance judge and Sir Alan in Malik v. Fassenfelt and others (ante).” (emphasis added)

Whilst clearly the views expressed by HHJ Pelling will be welcomed by and be of assistance to private landowners, it is suggested that they do not go far enough- in particular, it is suggested that a landowner’s art. 1. protocol. 1 rights can never be “trumped” by a trespasser’s art 8 rights, contrary to what HHJ Pelling seems to be suggesting.

We are all familiar with the art. 8(2) proportionality balancing exercise contemplated in Manchester CC v Pinnock [2010] UKSC 45 and explained in LB Hounslow v Powell [2011] UKSC 8. However, what happens to this exercise when both parties have Convention rights?

The Convention was brought into UK domestic law by s.1 of the Human Rights Act 1998. S.6(1) of the Act makes it unlawful for a “public authority” to act in a way which is “incompatible” with the Convention rights, as incorporated.

S.7(1) of the Act provides that a person may rely on Convention rights as a cause of action, or as a defence, in proceedings against a public authority. Nothing is said about the use of the Convention in private/private disputes.

It is clear therefore that the Convention, through the Human Rights Act, has what is called a ‘vertical’ effect- an individual can rely on the Convention as against manifestations of the state (public authorities) by virtue of s7. The Convention (via the Human Rights Act) creates NEW causes of action and defences which an individual may exploit. What is less clear is the extent to which the Convention acts ‘horizontally’, that is, between private individuals.

Under s.3 of the Act the Court is bound to give effect to primary legislation and subordinate legislation in a way which is compatible with Convention Rights, “so far as it is possible to do so”.

The Act however is silent as to the effect of the Convention in cases such as Manchester Ship Canal where the landowner’s claim to possession relies not on statutory rights but on its common law right. As noted above, s.6(1) requires that a public authority must not act in a way which is incompatible with the Convention. The landowner is not a “public authority”, so is not obliged to have regard to the convention- but the Court is (s.6(3)). What does this require the Court to do when adjudicating upon common law rights between private individuals?

In Venables v News Group Newspapers Ltd and others [2001] Fam 430 Dame Elizabeth Butler-Sloss was considering these provisions (art.8 and the HRA) in the context of an application by Jon Venables and Robert Thompson (the murderers of Jamie Bulger) for lifetime injunctions preserving their anonymity. The application was, needless to say, opposed by the press who claimed a right to freedom of speech under art.10. Dame Butler-Sloss said:

27 That obligation on the court [under the HRA to have regard to art 10] does not seem to me to encompass the creation of a free-standing cause of action based directly upon the articles of the Convention, although that proposition is advanced by Mr Fitzgerald as a fall-back position, if all else fails. The duty on the court, in my view, is to act compatibly with Convention rights in adjudicating upon existing common law causes of action, and that includes a positive as well as a negative obligation.” (emphasis added)

The common law cause of action in that case was a claim for an injunction in respect of confidential information. Thus, the important thing was not that the Convention created new common law causes of action, but that an already existing common law cause of action should be construed and applied in accordance with the Convention. By extension, the Convention and the HRA do not create any new defence to a claim for possession (against trespassers), rather any existing defence should be applied and construed in accordance with convention.

The Court in Venables found that there was a real risk of a breach of art 2 and art 3 (right to life and right not to be tortured) and that the Court should therefore intervene to prevent these breaches by granting an injunction (NB the Court HAD to intervene as art 2 and art 3 are unqualified rights i.e. there are no circumstances under which they can be violated). In other words, there was an obligation on the State not only to refrain from breaching the Convention (a negative obligation), but to intervene to ensure that other people would not breach it either (a positive obligation).

In the wake of the Venables/Thompson cases there have been the – now much publicised- super injunction cases. These were nothing more than the Courts attempting to balance the individual’s right to private and family life (art. 8), with the papers’ right to freedom of expression (art 10). As noted above, it is an exercise in the Court using the competing Convention rights to inform its decision on whether or not to grant an injunction. The Convention guides that decision, but is does not supply the cause of action which already exists at common law.

In Campbell v MGN [2004] 2 AC 457 the model Naomi Campbell was seeking to prevent the Mirror from publishing articles and pictures concerning her attendance at narcotics anonymous. Lord Nicholls said in terms:

“The values embodied in articles 8 and 10 are as much applicable in disputes between individuals or between an individual and a non-governmental body such as a newspaper as they are in disputes between individuals and a public authority” [17]. He further recognised that when two opposing convention rights were engaged, tricky issues of proportionality arise.

In a penetrating analysis in the same case Baroness Hale confirmed that: “The 1998 Act does no create any new cause of action between private persons. But if there is a relevant cause of action applicable, the Court as a public authority must act compatibly with both parties’ Convention rights.” [132] and “…where existing remedies are available, the Court not only can but must balance the competing Convention rights of the parties.” [134] (emphasis added).

It can be seen therefore that the exercise which the Court must carry out where both parties before it have enforceable convention rights is different from that in Pinnock where only one party does has such rights, and those rights are protected directly by the HRA. The relevant Convention right in relation to the landowner is of course is art 1 of Protocol 1.

Protocol 1 art 1. has three parts: peaceful enjoyment of possessions, prohibition on deprivation of property and state control of the use of property. See for example Ghigo v Malta (31122/05) para.48.

In Ghigo it was held that the State imposing a residential tenant on a (private) landlord for an indeterminate period at a rent fixed by the State so that the landlord did not know when, if ever, he would recover full possession of his flat was not a “deprivation” of the landlord’s flat as it did not amount to a de facto expropriation. It was however an exercise in “control” by the State and could only be justified if in accordance with “the general interest” (para. 50). This “control” could only be carried out by “enforc[ing] ... laws” and thus the control must be lawful in a domestic context (Ghigo para 51).

But in trespasser cases there is no domestic statutory law which can be “enforced” in the occupier’s favour by the Court. The occupier has no domestic law rights. In fact, the only applicable “law” is the landowner’s common law right to possession which the Court is obliged to enforce by virtue of s.6(1) of the HRA.

In cases where a Court order is required before a landowner can retake possession e.g. under the Housing Act 1988 there might be an argument that a Court would “enforce” the 1988 Act in the tenant’s favour by refusing the landlord an order, in appropriate circumstances. But the ab initio trespasser case is completely different. The landowner does not NEED a Court order - it could, if it wished, resort to self help and avoid any question of the HRA and the Convention altogether. McPhail v Person unknown [1973] Ch 447. Affirmed in Secretary of State for the Environment v Meier [2009] UKSC 11 [30]

Were the Court not to make an order, or to postpone an order for possession, far from “enforcing” the law, it would be failing to enforce the land owner’s unqualified right to possession.

It is suggested therefore that in ab initio trespasser cases such as Manchester Ship Canal the Court cannot do other than grant possession. To do otherwise would be a failure by the Court positively to protect the land owner’s Protocol 1 art. 1 rights, which failure is unlawful by virtue of s.6(1) of the HRA.

Conclusion

Whilst the final position remains unclear, it. seems that the Courts are increasingly marginalising the impact of art 8 in ab initio trespasser cases. As set out above, my view is that art. 8 should never “trump” a landowner’s art. 1 protocol 1 rights, however this remains to be tested in the Courts. It should be noted that the impact of art. 8 may be different in situations where the occupier has some residual statutory protection, for example under the Housing Acts or under the Rent Act 1977. That discussion will form the topic or a further article.

This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.